For a constitutional democracy that (in theory) prides itself on freedom of speech and robust debate, the Public Protector Act is a curious thing.
Section 9 of the Act says: “No person shall insult the Public Protector”.
But what if the greatest insult to the constitutionally enshrined Office of the Public Protector was the conduct of the person holding that office?
And what is the legal definition of an insult anyway? The “definitions section” of the Act doesn’t help, because it does not define “insult”. It’s a serious omission because journalists, analysts and the rest of us need clear guidance about what we can say (within the ambit of the law) about reports produced by Advocate Busisiwe Mkhwebane.
It would probably be considered insulting to describe someone as ignorant of the law, impervious to logic and agenda-driven.
But if one were to describe a report in this way, would it be considered an insult to the writer? Even if the writer of the report is not the author of its content? And would an analytical demolition of a deeply flawed finding be considered insulting even if it were factual, objective and truthful?
How would one weigh up the right to free speech against the Public Protector’s right not to feel insulted?
The Act’s injunction not to insult the Public Protector is probably based on enforcing respect for this Chapter 9 institution in the same way respect is owed to our judiciary. Nevertheless, we routinely engage in robust and extensive commentary on court judgments because our Constitution protects the deeply-enshrined right to freedom of expression.
So where is the line for comments on reports of the Public Protector?
Perhaps it is time for a test case on these crucial issues, for which I offer to be a guinea pig.
I do so, because the latest report of the Public Protector on a matter involving me (just like a range of other reports) is, in my view, ignorant of the law, impervious to logic and agenda-driven.
Adv. Mkhwebane was appointed by Jacob Zuma just over two years ago, as he was gearing up to fight the battle of his life to stay out of jail, by ensuring that his ex-wife was elected to succeed him. In order to do this, he posed as the saviour of black South Africans, depicted Cyril Ramaphosa as an agent of white monopoly capital, portrayed whites as South Africa’s core problem, defined the DA as a “white party”, and promoted “Radical Economic Transformation” including expropriation of land without compensation.
To promote this narrative, destroy his opponents and reward his allies, the Zuma network deployed his henchmen to a range of state institutions, and employed private sector allies (such as KPMG, McKinsey and Bell Pottinger) to support or disguise his looting project.
No institution, however, was more involved in this battle than the State Security Agency. Its job was to persecute Zuma’s opponents (which included manufacturing evidence and outrage against them) while protecting his gang of asset strippers.
The DA opposed Adv. Mkhwebane’s appointment as Public Protector for many reasons, most significantly because she was known to have worked for the State Security Agency. And SSA staff account to their spymaster, not the Constitution and the law. This, argued Glynnis Breytenbach (DA shadow Justice Minister), disqualified Advocate Mkhwebane as a “fit and proper” person to be Public Protector.
Adv. Mkhwebane promptly threatened to sue Breytenbach unless she withdrew the statement and apologised. Adv. Breytenbach refused to do either. The fact that Mkhwebane has not followed up on her threat, speaks volumes.
But the irrationality of some of her reports speaks even louder about the agenda she is pursuing.
Take her latest report. She has found that I breached the Constitution and the Executive Ethics Code in 2014, by supporting my son, who was a Mathematics teacher working in a state school in Khayelitsha, to give free matric preparation workshops to learners in various impoverished schools. He donated his time and skills without any remuneration, during the October holidays of that year.
My son initially offered these free workshops at the Khayelitsha school where he taught. He then spoke to his principal to discuss the possibility of offering them for free at other schools as well. She responded enthusiastically and he then approached a few other schools, receiving an equally warm reception.
However, when he went to the schools to prepare for the workshops, he found the available digital platform inadequate in some cases. He happened to mention this to me one evening, and concluded that he might have to cancel the workshops.
I thought it would be a pity if everyone were to be let down by the inadequacy of the digital platform, and I mentioned this to the director-general of the Province, advocate Brent Gerber, during our weekly meeting (at which I raise a range of issues, including the many public queries I receive each week). The DG is a qualified lawyer and a stickler for proper legal processes (as anyone working in the provincial government can attest). He would never knowingly let me do anything risky or legally non-compliant.
During our conversation, he reminded me that the Western Cape Education Department (WCED) had already initiated a procurement programme to purchase 480 tablets for use in after-school e-Learning programmes that would be rolled out during the fourth term of that year as part of a cabinet-mandated youth development strategy.
I had completely forgotten about this, as I had obviously not been part of the procurement process. I then asked him whether some of these tablets might be available for use from the start of the October holidays, (i.e. 10 days before the beginning of the fourth term). He said he would find out.
A few days later he wrote me an email saying he had enquired about the progress on the procurement, and yes, 150 of the procured devices were already available at the supplier’s warehouse and could be delivered before the October holidays.
I wrote back (copying the email to relevant officials) thanking him and saying that in addition, the tablets had to be available to any person wanting to offer free matric revision workshops during the holidays. I did this precisely to mitigate against any possible perception that my son might be getting preferential treatment from the WCED (if you can call sacrificing your holidays, without remuneration, to prepare learners for their matric as “preferential treatment”).
My son duly made his plans for the workshops on this basis and didn’t anticipate any problem regarding this request. As a WCED teacher, he used WCED equipment every day.
The workshops went ahead, the learner feedback was extremely positive, and they undoubtedly benefited significantly. He returned all the tablets in mint condition.
A good news story, if ever there was one.
It is also relevant to note, in this context, that many other educators have also used those same devices for learning-support programmes, including service providers who (unlike my son) received remuneration from the Western Cape government for doing so.
I have facilitated and encouraged them all, in every way I can (as documentation submitted to the Public Protector shows). My son was by no means unique in receiving my support for assisting learners in schools.
Almost three years later, in June 2017, Cameron Dugmore, who aspires to succeed me as premier of the Western Cape (for the ANC), laid a complaint against me with the Public Protector.
It is interesting that he never laid his complaint while Thuli Madonsela was in office. In fact, he waited almost three years after the matric-preparation workshops, and only took his chance when advocate Mkhwebane was safely ensconced in the post.
Equally interesting was the fact that Dugmore’s complaint was a complete fabrication. He accused me of violating the Ethics Code by forcing an emergency procurement of tablets for delivery to, and use by, a “company” owned by my son. I had done no such thing. Without a single shred of evidence to support this absurd allegation, advocate Mkhwebane nevertheless refused to absolve me of any wrongdoing.
Instead, once my office had sent her the correct facts relating to the procurement, and I had answered all her other questions, she went back to Dugmore and asked him if he wanted to adjust his complaint.
The reason I know this happened, is that she then wrote to me again, informing me her office had been in renewed discussion with Dugmore and she now had new questions to pose to me. This, in fact, amounted to a completely new complaint.
The conclusion is ineluctable that the Public Protector had given Dugmore a chance to reformulate his complaint to have a better chance of discrediting me.
The Public Protector informed me that Dugmore had given her the email I had written to the director-general in which I said: “I just want to make it clear, as discussed with Minister Schafer, that these tablets should be available for use by ALL service providers who provide FREE services to students in the run-up to the examinations till the end of the year (not necessarily only matrics).
”This email was no revelation. I had referred the Public Protector to it right from the start in our first response on the alleged “emergency procurement” to show that my son had received no preferential treatment.
Indeed, the Public Protector had found no fault with this email - until Dugmore gave it a particular “spin”.
The Public Protector then concluded that the email could be interpreted as proof that there MAY HAVE BEEN A PERCEIVED CONFLICT OF INTEREST, which she claimed was enough to find me guilty of violating the Code of Ethics.
Now, it was precisely because I realised that my son’s use of the tablets may have given rise to a perceived conflict of interests, that I wrote the email to the director-general (and copied it to others) stressing the tablets had to be generally available for others to use on the same terms.
In other words, the email was written to deal with any such perception should it arise - as I am required to do under the Executive Ethics Code. Far from violating the requirements of the code, my email showed I took action to comply with it.
If this email had indeed created such a perception of a conflict of interest (when it was actually mitigating against it), why did it take three years for someone to complain?
And why was the only complainant Cameron Dugmore - the very person seeking to replace me as premier?
In this context, it is worth examining the concept of a conflict of interest. This occurs when a person in a position of power takes a decision in which their personal interest clashes with their public interest. It usually involves personal financial gain. If decision-makers advance their private interests at the expense of the public interest, this qualifies as a conflict of interest and is grounds for a legitimate complaint.
None of these factors apply in this case. The public interest was promoted by the use of these tablets for free matric maths revision workshops, not prejudiced, and there was no monetary gain involved.
The Public Protector seems unable to grasp the fact that when different interests exist simultaneously, they are not necessarily in conflict. The law (as well as regulations issued by the Public Service Commission) make provision for a congruence of interest (which is entirely legal and legitimate) as opposed to a conflict of interest (which is not).
Congruence of interest is how the whole world manages to work co-operatively in hundreds of millions of interactions every single day.
So, the only potential question to ask is whether my email was sufficient to avoid the risk of any perception of a conflict. Was this reasonable action for me to have taken, as the code requires?
The Public Protector says no, and has suggested I should rather have remained entirely silent, or that my son should have approached the DG himself. Her contention is neither rational nor reasonable as both of these courses of action, in my view, would have heightened the perception of a conflict, not mitigated it.
In my view, the Public Protector’s contention indicates a profound ignorance of the workings of government, and the way potential conflicts of interest are mitigated and managed.
The justice committee in Parliament is currently investigating this very question following previous damning court rulings against Mkhwebane, including her Absa-Bankorp report, where the court questioned her understanding of the powers and duties of her office and handed down a personal cost order against her. She is currently appealing against this cost order in the Constitutional Court.
If I faced the same circumstances today as I did in September 2014, with everything I now know, I would do exactly the same thing again. I would raise the issue with the DG. He would follow up, meticulously within the law, and take the best course of action to ensure that lawful assistance was provided, to the benefit of our learners and the country.
What we did was, and remains, the right thing to have done.
The Public Protector’s report, on the other hand, is wrong. More than that. It is irrational. And if advocate Mkhwebane takes that as an insult, I will see her in court and prove that to offer my analysis of a report, as I have done above, cannot be legally interpreted as an insult to the Public Protector.
Come to think of it, I will see her in court anyway, because I intend, once again, to join the growing band of people taking her reports on review.
- Helen Zille is premier of the Western Cape.